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On Same-Sex Marriage, Reasonable Minds May No Longer Differ

 Published in the Maryland Daily Record April 8, 2013

Last November, Maryland had a referendum on same-sex marriage. In the run-up to the election, the Catholic archbishop of Baltimore wrote a letter effectively ordering the faithful to vote against gays and lesbians marrying, and directed that it be read aloud in every pulpit.[1]  A friend of mine, from a venerable and distinguished Catholic family, was in church that Sunday with her two teenaged daughters, both of whom attend Catholic schools. After Mass that day and hearing the letter read, they announced to their mother that they were finished going to church – and obviously, short of dragging them physically, the mother had no way of forcing them into the pew. So that was that: the Church had just lost two bright young members.

This is just one example of the damage certain leaders and institutions are now doing to themselves by trying to fight the tide of acceptance on same-sex marriage. And it is entirely to be expected. After many years of dialogue, the public debate is well-nigh over. The arguments against same-sex marriage, after this prolonged vetting, stand revealed as simply irrational.

No Ducking A Reasonableness Test

Thus, for instance, the argument that the Bible forbids homosexuality. Maybe; that’s debatable. What isn’t debatable is that the dietary rules in the Bible also forbid ham sandwiches and pepperoni pizza, while both Old and New Testaments condone slavery. [2] You can be a rational Christian, but you cannot rationally maintain that anything is bad merely because the Bible says so. Reason calls for – insists upon – a separate reality check, in the course of which any sane Christian will discard some Biblical prohibitions. And the reality check with same-sex marriage leads to the other arguments, which all come out the same way.

Take the argument that marriage must have some kind of relationship to child-engenderment. We allow old straight people to marry, despite their evident barrenness.[3] Or the argument that children should have access to one parent of each sex: when compared to children of two same-sex parents in any respectable social science study, there is no deficit in the children’s well-being. Or the argument that gay people can (and will) train their kids to be gay: unsupported by any scientific data.[4]

And so forth.

The Consequences of Flunking The Test

When you get down to it, opposition to same sex marriage is not about rationality. It either comes down to distaste or shoddy thinking, or both. And now most of the American public recognizes this. If our leaders and institutions continue to attempt to enlist us against gays and lesbians marrying, they stand revealed as being, at best, shallow thinkers – at least on this issue. And shallow thinkers command little respect, which usually works out badly for them. As it did for the Church (my Church too, let me add) the day the Archbishop’s letter caused two young churchgoers to vote with their feet.

Which brings me to the Supreme Court. As the world knows thanks to the endless coverage, the Court must soon decide the fate of two laws: California’s Proposition 8, which would deny that state’s recognition to same-sex couples, and the federal Defense of Marriage Act, which denies federal recognition to same-sex couples, even those lawfully married under the laws of states which permit it.

At this writing, on the day oral arguments concluded, it seems quite possible the Supreme Court could act in such fashion as to leave both laws invalidated and yet avoid announcing a constitutional right for same-sex couples to marry. And there is a reasonable chunk of the commentariat encouraging the Court to do just that, to go slowly and cautiously[5]. In my view, such a sidestep would be a big mistake, partly because of that losing respect thing I mentioned. It would put the Court in bed with stupidity, a place the Court can ill afford to be these days.

Not Rocket Science

Consider how simple and obvious the basic problem is. Marriage is a fundamental right: we know that from Loving v. Virginia (1967). Fundamental rights can be interfered with only for good reasons, and by now all the reasons not to let gays and lesbians marry stand revealed as bad ones or (to the extent they are simply religious) ones that a religiously pluralistic society cannot use as a basis for denying rights.

The Fence The Court Needs To Mend

Meanwhile, the Court has some fences to mend. It has severely damaged its standing with its indefensible and indecipherable ruling in Bush v. Gore, which handed the 2000 election to a man who had lost it (and in the process certainly bequeathed us the Iraq war, and probably also the 2008 fiscal crisis). It allowed corporations disproportionate sway in the political sphere with Citizens United. It’s Second Amendment jurisprudence has probably cost thousands of innocent American lives. And even its grudging support of the Affordable Care Act (aka Obamacare) was done in such a way as probably to gut the Commerce Clause, a vital tool in effectuating national policy, going forward.

The commentators who urge caution in recognizing a constitutional right of gays and lesbians to marry all say this because they are afraid of provoking resentment and loss of acceptance on the right, the part of the spectrum where opposition resides. They urge that we allow matters to proceed state-by-state, hoping that each state electorate will eventually permit same-sex marriage, given time. But the Supreme Court has few fences to maintain or mend on the right, despite all the mutterings from that corner about “unelected judges.”

No, it is in the center and on the left that the Court had better think about its standing. For a generation, going decision by decision, including the big ones just mentioned, the Court has mostly been at war with the center and the left. And now it must deal with the fact that the center and the left look to be the majority for the foreseeable future, a majority whose respect the Court needs – and does not now have.

The last time the Court enjoyed such widespread disrespect was during the early New Deal, and it nearly resulted in court-packing. And the way things have been going, the idea might well be revived if the Democrats ever regained sufficient control of Congress.

Damn the Torpedoes

So, from the point of view of the Court’s legitimacy and integrity, this ought to be a Brown v. Board of Education moment. If there is a constitutional right of which people are being deprived, and pretty clearly there is such a right, there is no justification to wait for a “seasonable” moment to recognize it. In any case, it’s seasonable already. The gradualists, the optimists who see sweet reason swaying legislature after legislature, can ask themselves whether segregation would ever have become illegal in certain states without Brown. Certainly, at a minimum, it would have taken another generation to flush out all the Jim Crow laws. If we ever wish to see same-sex marriage recognized everywhere in our lifetime, the Court will have to say very soon that recognition is constitutionally required. Today is seasonable, then. And waiting will lose the Court respect.

Saying it today would not only be right, therefore, but awfully expedient for a Court that needs to realign itself sooner rather than later.

___________

[1] Interestingly, since the election, in which same-sex marriage prevailed, the Archbishop’s letter has become invisible on the Web, so far as I have been able to determine. Instead, the principal way to access references to it has been through references to a sermon preached in opposition by Rev. Richard Lawrence, pastor of Baltimore’s St. Vincent de Paul parish. The audio and video of the sermon are widely available. News coverage can be found here.

[2] Some of the most shocking endorsements of slavery are to be found in Exodus 21, right after the chapter with the Ten Commandments in it.

[3] A point Justice Kagan memorably made during the recent Supreme Court arguments.

[4] When I wrote this, I was unaware that there is some evidence suggesting a somewhat higher incidence of homosexuality among children of same-sex parents. There is also evidence the other way. However, even if the higher incidence should be proven true (which seems unlikely though not impossible in the face of further scrutiny of the admittedly sketchy data): a) there seems to be no respectable data suggesting that sexual orientation is chosen, and hence none that same-sex parents are making homosexuality occur where it would otherwise not do so; b) there seems to be no data at all suggesting that anyone is consciously attempting to persuade their children to adopt a homosexual orientation (which would be futile anyhow); and c) no one should care anyway, because the very raising of the issue implies that homosexuality in children is somehow an undesirable outcome.

[5] See, e.g., here or here.

Copyright (c) Jack L. B. Gohn

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